February 06, 2018

Davies on Interpretive Pluralism & EU Law

Gareth T. Davies (Free University of Amsterdam - Faculty of Law) has posted Interpretative Pluralism Within EU Law (in M. Avbelj and G. Davies (eds) Research Handbook on Legal Pluralism and EU Law (Edward Elgar, 2018)) on SSRN. Here is the abstract:

This chapter puts forward the idea of interpretative pluralism. It suggests that when EU law and national constitutional law seem to be in tension this should not be resolved through hierarchy, but rather through interpretation. Instead of using constitutions to set limits to EU law, national apex courts should take as their starting point that both EU law and constitutional law must apply, and interpret them to fit. As with privacy and free speech, a structural hierarchy is not necessary to cope with legal provisions that are sometimes in tension with each other, and it is an approach with emphasises conflict and the apartness of legal systems, instead of directing judicial energy towards the more constructive search for sensible meanings.

The apparent obstacle to this is the view that the Court of Justice is the authoritative interpreter of EU law, and that the Treaty is what it says it is - that it 'owns' the Treaties. The Court may take this view, but there is little reason for national courts to agree. For it is a view which is at odds with the principle of conferral, since it allows the EU to determine its own powers, and also with the principle common to many European legal systems that one judge does not bind another.

Rather, each judge faced with European law should interpret it autonomously, taking the views of other judges seriously, but reaching their own conclusion. If this leads to judicial disagreements, that is a normal feature of legal systems. What it encourages is a collective dialogue about what the law means, which is far more constructive than thinking about which law is top.

For those who fear that this would lead to fragmentation of EU law, even its collapse, it may be noted that the possibility of direct actions in Luxembourg provides a good reason for national courts to take the Court of Justice very seriously - it is rather that a central monopoly on interpretation is replaced by a balance of power. In any case, national courts often ignore or misuse EU law now. Fragmentation now is a result of hostility to EU law, not systemic defects. The question is whether we want suspicious national judges to manifest their suspicion by sidelining EU law, or by arguing about its meaning.

Encouraging the latter encourages national courts to take ownership of EU law. In affirming their right to interpret it - to act as judges - it is likely to improve EU law's integration in national legal systems. In making national judges into European judges, rather than clerks for the Court of Justice, it fulfils the promise of van Gend en Loos that EU law would become part of the legal heritage of Europeans.